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Income Tax Appellate Tribunal, DELHI BENCH ‘G’: NEW DELHI
Before: SMT. DIVA SINGH & SHRI O.P. KANT
Hearing conducted via Webex ORDER PER DIVA SINGH, J.M.
By these two appeals filed by the assessee the correctness of the consolidated order dated 29.12.2017 of Ld. CIT(A)-IV, Kanpur pertaining to 2013-14 & 2014-15 assessment years is assailed on various grounds.
The appeal came up for hearing on 20.10.2021 and on the said date, no one was present on behalf of the assessee.
The Ld. CIT DR Ms. Yagyasaini Kakkar submitted that on identical facts and reasoning available in the case of the assessee itself the present appeals may be dismissed ITA Nos.2859 & 2860/Del/2018 following the order of the ITAT dated 24.08.2021. Relying on the said order in assessee’s own case (2009-10 and 2012-13 assessment year) in and 4873/Del/2016 the said request was rejected.
4. Since the copies of the orders were not readily available the appeals were adjourned to the next date. Copy of the aforesaid order was filed. Relying on the order the Ld. CIT DR again requested for dismissal of the assessee’s appeals.
5. We have heard the submissions and perused the material available on record. In the facts of the present case, it is seen that the assessee has raised the following grounds in the respective appeals: Grounds of 1. “That the Ld. CIT(A) has erred in passing an ex-parte order and upholding the assessment order without going into the merits of the addition as no proper opportunity has been granted to the appellant.
2. That the Ld. CIT(A) has erred in dismissing the present appeal ex-parte despite that the preceding’s year appeal on similar issue are pending for adjudicating thus appellant company was prevented from sufficient cause.
3. That on facts and circumstances of the case the Ld. CIT(A) has erred in dismissing the appeal ex-parte in limine despite the facts that the assessee counsel was appearing in the appeal No. 601 to 604 of the director on regular basis under the impression that the appeal of the company will be taken thereafter.
4. That the appellant company has a bonafide belief.
5. That the Authority Below has erred in law and facts in making addition of Rs. 219,45,23,863/- on the basis of budgeted figures seized documents which has no relevance as it is not signed audited or dated and making its own absorbed calculation without taking into consideration the audit report balance sheet and computation.
6. Also the contention of the AO that the turnover is very low as compared to the industry is super flos and imaginary in nature. So the addition of Rs. 219,45,23,863/- is highly absurd in nature and against the natural justice. It may be prayed that the additions of this nature may be please deleted. Page 2 of 6 & 2860/Del/2018 7. That the authority below has erred in law and in facts of the case in adding Rs. 45,96,73,461/- to the income of the assessee on the basis of buyer builder agreement and payment received in various modes including Cash/NEFT/RTGS and cheque’s. This is the nature of business of Assessee and all the transaction duly recorded in the books of Assessee in the relevant AY. The AO has made this additions in complete disagreement of principal of Natural Justice and is arbitrary and absurd in nature. It is prayed that this addition may be please deleted.
8. That the Authority below has erred in law and in facts in making additions of Rs. 129,55,52,016/- on account of Unexplained credit and Loan on the basis of some documents seized at the time of survey operation and also stated that the total amount Received Rs. 201 Cr and surrender Rs. 115 cr and surrendere Rs. 115 cr. The assessee has retracted his statement on 16.03.2016 for any surrender and the said amount of Rs. 201 cr has already been booked in books of account of the assessee various companies. Hence addition of Rs. 129,55,52,016/- made by AO is arbitrary and absurd and may be pleased deleted.
The additions on account of Unexplained Credits of Rs. 33,35,00,000/- from various persons. The said amounts already accounted for in the books of the assessee and no material facts have hidden. Hence in the sake of Justice this additions of Rs. 33,35,00,000/- may please be deleted.
That on facts and circumstances of the case the AO has erred in law by not accepting the submission of the assessee and ignoring the submission of the assessee is against the principle of natural justice. The assessment completed as ex-party assessment as per the provisions of section 144 of the IT Act is illegal and unlawful, hence required to be quashed.
That the Authority below has erred in law and in facts in making the assessment of the assessee u/s 144 of the IT Act without giving proper opportunity by not issuing the show cause notice or not issuing notice u/s 142(1) for concluding the case ex-party assessment u/s 144 which is pre-requisite conditions for the assessment u/s 144 of the IT Act, hence assessment made illegal and required to be quashed.
That the appellant craves to leave to add/delete/alter all/any of appeal before or at the time of hearing of the appeal.”
ITA Nos.2859 & 2860/Del/2018 Grounds of 1. “That the Ld. CIT(A) has erred in passing an ex-parte order and upholding the assessment order without going into the merits of the addition as no proper opportunity has been granted to the appellant.
2. That the Ld. CIT(A) has erred in dismissing the present appeal ex-parte despite that the preceding’s year appeal on similar issue are pending for adjudicating thus appellant company was prevented from sufficient cause.
3. That on facts and circumstances of the case the Ld. CIT(A) has erred in dismissing the appeal ex-parte in limine despite the facts that the assessee counsel was appearing in the appeal No. 601 to 604 of the director on regular basis under the impression that the appeal of the company will be taken thereafter.
That the appellant company has a bonafide belief.
5. That the Authority Below has erred in law and facts in making addition of Rs. 438,90,47,726/- on the basis of budgeted figures seized documents which has no relevance as it is not signed audited or dated and making its own absorbed calculation without taking into consideration the audit report balance sheet and computation.
6. Also the contention of the AO that the turnover is very low as compared to the industry is super flos and imaginary in nature. So the addition of Rs. 438,90,47,726/- is highly absurd in nature and against the natural justice. It may be prayed that the additions of this nature may be please deleted.
7. That the authority below has erred in law and in facts of the case in adding Rs. 86,45,45,000/- on account of Unexplained credit on the basis of some documents seized at the time of survey operation. The amount has already been booked in books of account of the assessee various companies. Hence addition of Rs. 86,45,45,000/- made by AO is arbitrary and absurd and may please be deleted.
8. That on facts and circumstances of the case the AO has erred in law by not accepting the submissions of the assessee and ignoring the submissions of the assessee is against the principal of Natural Justice. The assessment completed as ex-party assessment as per provisions of Section 144 of the IT Act is illegal and unlawful, hence required to be quashed.
9. That the Authority below has erred in law and in facts in making the assessment of the assessee u/s 144 of the IT Act without giving proper opportunity by not issuing the show cause notice or not issuing notice u/s 142(1) for concluding the case ex-party assessment u/s 144 which is pre-requisite conditions for the assessment u/s 144 of the IT Act, hence assessment made illegal and required to be quashed. Page 4 of 6 & 2860/Del/2018 10. That the appellant craves to leave to add/delete/alter all/any of appeal before or at the time of hearing of the appeal.”
6. It is seen that the Coordinate Bench in its aforesaid order dated 24.08.2021 had an occasion to consider the issue in the following manner: - 4. “At the time of hearing, the registry placed before us that the notice was issued to the above party at the address given in form number 36 filed by the assessee by speed post tracking number ED 978388171IN. The above appeal post has been returned to this tender on 28.07.2021 with the remarks ‘left without addresses’. On our verification we find that the addresses correctly mentioned and also deposited stamps were appropriately paid, despite this the notice is sent to the appellant returned back for the reason that appellant assessee has left the place which was given in form number 36 without intimating any other alternative address. As the appellant has not informed any change in the address, we do not have any other option to find out the correct address of the assessee and, therefore, the only alternative left is to dismiss these appeals.
As the appeals have been filed by the appellant, direction to the respondent was serve notice on the appellant would be unfair, as it would be casting an additional burden on income tax department to find out the appellant.
Even otherwise, we find that the above company has been referred for insolvency proceedings in company petition number IB1059/ND/2018 u/s 9 of IBC 2016 by the order passed on 26.11.2018. Accordingly, the insolvency resolution professional has been appointed. The board of the company has been suspended. These all appeals are filed by one Mr. Piyush Tiwari, who is part of the suspended board of directors. As the person named who filed the appeal does not have now any locus standi to file the appeal or pursue matter on behalf of the appellant company, these appeals are deserves to be dismissed as not maintainable.
Accordingly, we dismiss all these four appeals filed by the appellant, however, we also give liberty to the insolvency resolution professional so appointed to file these appeals if authorized by the committee of creditors.” & 2860/Del/2018 7. We have seen that in the facts of the present case repeatedly the assessee has remained unrepresented before the ITAT on each of the dates the appeal came up for hearing. We have noticed that the address given by the assessee before the ITAT in the present proceedings is also the same as noticed by the Coordinate Bench. It is seen that in the facts of the present case also the appeals have been filed and signed by Mr. Piyush Tiwari and considering the fact that the Coordinate Bench has held in para 6 of the aforequoted order that he lacked the locus standi to filed appeals we hold that these appeals also have to be dismissed. Thus, following the reasoning taken in paras 5 to 7 we dismiss the appeals as non-maintainable. While so dismissing the professional so appointed by the Insolvency Resolution is granting liberty to file the appeals if so authorized by the Committee of creditors. Said order was pronounced in the open court at the time of hearing itself.
In the result, the appeals of the assessee are dismissed.
Order pronounced in the open court on 22/10/2021